Re Mohammed Zubair

CAMP 125/2019

[2020] HKCA 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 125 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 548 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.By a judgment dated 11 November 2019 ([2019] HKCA 1222) (“the Main Judgment”), the Court of Appeal refused to grant an extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 1 February 2019 in HCAL 548/2017 in which the Judge refused to grant him leave to apply for judicial review.

2.By a notice of motion dated 18 November 2019, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I would like to inform Court of Final Appeal. There is some ERROR in Law in my decision. Decision maker just relied on col information and my previous facts which were favour on reject my claim. Actual life occur different situation then mentioned col information officer and court prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.”

3.Pursuant to the directions made by the Registrar of Civil Appeals on 20 November 2019, the applicant lodged his written submissions on 29 November 2019.  In his written submissions, he advanced the following complaints:

(1)  The applicant requested for a re-hearing of his appeal as he did not receive an oral hearing for his application for leave to apply for judicial review and he should be given a hearing this time.

(2)  It was unfair that the Judge did not hear him in person.

(3)  The applicant did not understand the process and the reasons for rejecting his claim due to lack of language and legal assistance.

(4)  All acts of the authorities have been highly discriminatory and unfair to the applicant.

(5)  The lack of language assistance still exists up to date.

(6)  A delay of seven days may be not regarded as significant or excessive, for which the applicant had explained that he did not receive the letter from the court within time as he lived in some very remote village in Yuen Long where mail delivery was unreliable.

(7)  The applicant married in Hong Kong and he has three children.

(8)  The lack of legal representation for the assessment of BOR 2 risk and the insufficiency of language assistance provided to the applicant given his language improficiency were detrimental to his case.  He believed such assistance is essential as it was part of the assessment by the Immigration Department.  The Immigration officer considered his claim on BOR 2 risk without referring his case to Duty Lawyer Service, as opposed to his other applicable grounds of claim.

4.The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application is processed on paper without an oral hearing.

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  Here, the applicant’s claim was rejected by the Torture Claims Appeal Board (“the Board”) for the reason that he had failed to prove the primary facts of his case and he was not considered as a genuine asylum seeker, see [6] of the Main Judgment.  Assessment of evidence, COI materials and risk of harm are primarily within the province of the Board (and the Director of Immigration) and the court would not intervene unless there are valid public law grounds which we found none in this case.  The grounds of appeal set out in the notice of motion are not viable grounds of appeal.

6.We now turn to the grounds of appeal as set out in the written submissions.  Grounds (1) and (2) regarding the applicant’s request for an oral hearing had been canvassed and duly rejected in [15] of the Main Judgment. 

7.Grounds (3), (5) and (8) regarding his complaints for lack of legal and language especially for his claim for BOR 2 risk were unmeritorious.  We have repeatedly emphasised that the high standard of fairness does not prescribe that a non-refoulement claimant has the absolute right to legal representation at all stages of the process.  Here, the applicant had already had legal representation provided by the Duty Lawyer Services during the proceedings before the Director and he relied on the same set of facts in presenting his claim on BOR 2 risk and at the appeal hearing before the Board.  We do not consider that he had any basis to challenge the fairness of the process.  Further, we note that all the court documents prepared by the applicant in this case were written in English which showed he clearly had access to, or was able to seek assistance if he pursued the matter with due diligence.  The grounds (3), (5) and (8) simply cannot stand.

8.We will not entertain ground (4) as it is a new ground of complaint for which leave has not seen sought within time, not to say it is vague, general and without basis.

9.On ground (6), we had explained in [10] of the Main Judgment that despite the short delay on the part of the applicant in taking out the summons for his leave application, it would be futile to extend time for an intended appeal that had no prospect of success.  On ground (7), the fact that the applicant got a family with three children in Hong Kong is not a valid ground of appeal.

10.For the reasons given in the Main Judgment of 11 November 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

11.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

The applicant, unrepresented, acted in person